JUDGMENT K. Narayan, J. - By the judgment and order dated 14.10.1978 the IV Addl. Session Judge, Meerut in S.T. No. 175 of 1978 found the accused/appellant guilty of the offence under section 302, Indian Penal Code and accordingly sentenced him to imprisonment for life. Aggrieved by that conviction and sentence he has come up in appeal. 2. The deceased in the case Smt. Omvati was the wife of the accused. A report was lodged at 9.30 a.m. on 8.2.1978 at P.S. Binauli, District Meerut, narrating that an occurrence had taken place at unknown time in the Night of 7/8.2.1978 in village Chirachata. The report was lodged by Baljit, the village Chaukidar, conveying that he was told at about 7.00 a.m. in the morning by one Ramo that Lakhmi had murdered his wife with the help of phali and that when he went to the house of Lakhmi he saw the dead body of the victim and Lakhmi sitting there, under the arrest by Ram Phool, Jasvant, Sohan son of Prabhu and Sohan son of Sidhya Narain. This report was taken down at the police station. It appears that when the Investigating Officer reached the spot i.e. house of Lakhmi around 1.00 P.M. as usual he took the blood stained and plain earth, the dibia said to have been the source of light, blood stained clothes and phali and clove with a said the last being from near the body,of the deceased. The body of Smt. Onivati was sent for postmortem examination, which seems to have been conducted by some Medical Officer, but the said report has not been proved as the medical officer was never examined. It also appears from various statements with which the witnesses have been confronted that the prosecution story has been in the form that Ramo P.W. 2 was also a partner in the agriculture with Lakhmi, the accused in the case and had gone to his house early in the morning to put fodder before the cattle, while doing so he heard the shrieks from the house and when he peeped from the window he saw that Lakhrni assaulting his wife Smt. Omvati with phali and clove. His protest which was naturally lead invited others to the place and other witnesses namely, Bhadia, Raje, Jasvant, Tek Chand, Ram Phool, , Parsadi and other arrived and they also saw the occurrence from the window. His protest which was naturally lead invited others to the place and other witnesses namely, Bhadia, Raje, Jasvant, Tek Chand, Ram Phool, , Parsadi and other arrived and they also saw the occurrence from the window. After this sistering of the witnesses they removed the penal of the door from its touch and went inside. Smt. Omvati by that time died and they caught hold of Lakhmi. It was stated by P.W. 2 Ramo that when questioned accused Lakhmi had conveyed that his wife prau to object to his way of expenditure, more probably on the alcohol, hence he had beaten her. On the other hand the contention of the accused was two fold, in so far as the defence in court is concerned. The first contention was that he was a person of deficient mind or a delinquent and other defence which has been suggested to and made out the prosecution witness in cross examination was in the nature that was something very odd in the night some the accused was very much enraged against Ramo. However, in the statement of the accused himself nothing was stated about it and the statement has been almost in the nature of denial of prosecution case as suggested. 3. The learned Sessions Judge after considering the evidence recorded the conviction and sentenced as mentioned above. A perusal of the judgment however, shows that possibly he was more guided by the brief of the case diary, rather than the statement of the witness as witness other then Ramo had not supported the prosecution story. We will, therefore, proceed to reconsider the entire evidence. 4. P.W. 1 Baljit, the village Choukidar had simply lodged the First Information Report. His evidence otherwise is not material, but it gains weight in respect of certain omissions in the conduct of P.W. 2 Ramo in not informing him about any part of the occurrence before he went to the police station. We will take them up in detail below. 5. P.W. 2 Ramo has been the primary witness in the case. His statement has been as mentioned above that when he was putting fodder he heard shrieks and went to see the occurrence in the nature of assault upon Smt Omvati by her husband accused Lakhmi. According to him the other witnesses had come when the process of assault was still going on. His statement has been as mentioned above that when he was putting fodder he heard shrieks and went to see the occurrence in the nature of assault upon Smt Omvati by her husband accused Lakhmi. According to him the other witnesses had come when the process of assault was still going on. However, the other two witnesses namely, P.W. 3, Bhadia, P.W. 2 Raje have not supported this contention. P.W. 2 Bhadia had stated that he heard alarm raised by Ramo that Lakhmi had killed his wife, when he was going to the house of Ved Ram possibly to borrow his oxes and when he went to the house he saw from the window that Smt. Omvati lying in a cot and Lakhmi standing by her with a phali in one hand and clove in the other. He has also stated that one of the panel of the door was already lying removed from the tanent. This is a material thing as according to P.W. 2, Ramo, this door was removed when other witnesses had already come. This action according to this witness right in the examination in chief itself, had happened before he arrived and further when Lakhmi was asked as to what he had done, his reply was that he would beat or kill Ramo. This situation is much different from the story set up by Ramo. Thus the evidence of this witness cannot be said to be any proof' of the fact to the extent that he had seen Lakhmi standing by the bed of the deceased with a clove and a phali in both hands, when the door was already open and he had great grievance against Ramo. No body knows the reason for this grievance. It may be a sight of some illicit connection or may be an effort of assault on the person of his wife by Ramo. Once the door have been opened, nothing could be said with certainty, by any witness who arrived later. 6. P.W. 4 Raje had stated almost on similar lines that is to have reached the house of Lakhmi on hearing the alarm when the panel of the door had already been removed and had also heard Lakhrni conveying that Ramo had maltreated his wife. He had possibly come a little later as he did not see anything in the hands of Lakhmi. He had possibly come a little later as he did not see anything in the hands of Lakhmi. Of course he was declared hostile by the prosecution and was also confronted, with the statement under section 161, Criminal Procedure Code which he has denied. This practice of confronting the prosecution witnesses with a statement of the witnesses recorded under section 161, Criminal Procedure Code needs a little discussion. It would not be strange if the police officer considers the statement recorded by him to be the last word, but when the public prosecutor confronts the witness with that it simply shows that they themselves declare the witness to be a her. A statement recorded under section 161, Criminal Procedure Code is not an oath and even if it is admitted by the witness concerned that he gave such a statement, it cannot be read as a piece of evidence, unless the fact itself is stated on oath, which has already been denied. However, in the instant case, the witness had denied the so called statement under section 161, Criminal Procedure Code which was almost in consonance with the prosecution version deduced from the statements as mentioned above. The suggestion was that since be happened to he an agnate of the accused, had collided with him and was not stating the truth. He has denied the suggestion and all the more, the fact remains that if he was interested in the accused, Lakhmi, he was equally interested in the deceased, who happened to he the wife of the accused. 7. We are thus left with the statement of P.W. 2 Ramo alone. This person had sent the village Chaukidar, Baljit, P.W. 2 to the police station and P.W. 1 Baljit had stated that he did not tell him anything at that time, which could he said to he a detail of murder. This itself was an omission at the relevant time. A village choukidar may not be a very responsible officer, but he carries some weight specially when he is being sent to the police station to lodge a F.I.R. What was the difficulty for Ramo himself to have gone to the police station, so far as the suggestion of explanation is concerned. A village choukidar may not be a very responsible officer, but he carries some weight specially when he is being sent to the police station to lodge a F.I.R. What was the difficulty for Ramo himself to have gone to the police station, so far as the suggestion of explanation is concerned. Ramo himself admitted that the house was being run by the mother of Lakhmi and he could not point out any other extra agency on the part of Lakhmi, except incident of wine, which too does not find any mention anywhere except his statement. This also contradicts with other witnesses. Realising the value of the omission he attempted to suite in the cross-examination that he had conveyed every thing to Baljjit, the village chaukidar, which position as already said above has already been denied. A suggestion was made to him that he had no illicit connections with Smt. Omvati and in fact Lakhmi had gone to irrigate the fields in the night and on his return he found them together in a bed, where after he entered removing the door and thereafter some occurrence took place. Though the suggestion has been denied, the other aspect which is too obvious is also there. The I.O. has stated and it is too well known that the deceased at the time of inquest was found wearing a salwar and a petticoat together, which is a very unusual situation, obtaining at times of change and the early hours could not be a time for that. What was the reason behind? There was something relating to sex, but how and what, is not well made out. In addition to this fact it is also remarkable that in the First Information Report, no time of occurrence was mentioned. The absence of this factor is also an important aspect and renders the entire story doubtful and more in the nature of affairs set up by Ramo, whose own role in the entire affairs is not fret from doubts. 8. After loss of entire direct evidence one could be left with only one consideration i.e. the accused having been found in the room alone with the deceased. That could be a substantial evidence, set in the circumstances of the case even that cannot be given much weight as when the witness, had reached, Ramo being very much questionable, the doors were already open. That could be a substantial evidence, set in the circumstances of the case even that cannot be given much weight as when the witness, had reached, Ramo being very much questionable, the doors were already open. Who in fact inflicted the injuries upon the deceased could be said or even presumed in the form of certainty to fasten the liability thereof upon the accused/appellant. 9. The prosecution in a vary case has to stand on its own legs. The learned sessions Judge has rightly observed that he was not acting upon any statement of the accused, as he could not act upon them unless the necessary formalities of confession were there and in fact the accused had not confessed anything though on account of deficient understanding, he might not have been very clear in his statement. The purport of section 313, Criminal Procedure Code is to offer an opportunity to the accused to explain the circumstances, appearing against him and not to obtain a confession from him. The statement cannot be read for that purpose. 10. In the result it is evident that the prosecution had failed to make out a case of murder, or culpable homicide, not amounting to murder against the accused/appellant. In the result the appeal should succeed. 11. The appeal is accordingly allowed. Conviction and sentence recorded by the Trial Judge are hereby set aside and the appellant shall stand acquitted of the charges framed against him. He is on bail. He need not surrender. His bails and bonds are cancelled and sureties discharged.